FOSTA: The New Anti-Sex-Trafficking Legislation May Not End the Internet, But It’s Not Good Law Either

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March 28, 2018

Amid the chaos of the last week, one of the most significant pieces of internet legislation of the last two decades went relatively unnoticed. Most people likely had no idea that Congress was moving full steam ahead on altering a law that some credit for “why we have the internet.” And so it did: On March 21, the Senate passed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA).

Although the president has yet to sign the legislation, the bill’s effects are already being felt. FOSTA (known in a previous form as SESTA, or the Stop Enabling Sex Traffickers Act) amends Section 230 of the Communications Decency Act, which provides tech companies immunity from most liability for publishing third-party content. Currently, only federal criminal law, intellectual property laws, and the Electronic Communications Privacy Act fall outside the immunity provision. In the years since its enactment in 1996, Section 230 has been characterized as “the Magna Carta of the internet,” as Alan Rozenshtein wrote recently on Lawfare. For its supporters, Section 230 immunity is credited with enabling the growth of online platforms as safe-havens for speech, even speech that platforms would be responsible for if it was expressed offline.

For the first time in twenty years, FOSTA carves out an additional statutory exception for that immunity. The idea is that online platforms should face the same liability for enabling illegal sex-trafficking, as offline outlets do. According to the bill’s oddly-phrased “Sense of Congress” introduction, Section 230 was “never intended to provide legal protection to websites . . . that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” That provision continues, “[i]t is the sense of Congress that websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”

Read the full post at Lawfare